Amendment SSA2-SB320

LRBs0292/1

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2005 - 2006 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 2, TO 2005 SENATE BILL 320

January 17, 2006 - Offered by Senator Kanavas.

SB320-SSA2,1,4 An Act to amend 20.455 (1) (gh), 100.263, 100.264 (2) (intro.) and 165.25 (4) (ar); and to create 20.115 (1) (gs), 100.54 and 943.201 (2m) of the statutes; relating to: regulating certain electronic mail solicitations and practices related to electronic mail solicitations, providing penalties, and making an appropriation.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB320-SSA2, s. 1 Section 1. 20.115 (1) (gs) of the statutes is created to read:

SB320-SSA2,1,8 20.115 (1) (gs) Investigations; electronic mail solicitations. Twenty percent of all moneys received as awards under s. 100.263 for the costs of investigating a violation of s. 100.54, for the purpose of the investigation of violations of s. 100.54.

SB320-SSA2, s. 2 Section 2. 20.455 (1) (gh) of the statutes is amended to read:

SB320-SSA2,2,4 20.455 (1) (gh) Investigation and prosecution. Moneys received under ss. 49.49 (6), 100.263, 133.16, 281.98 (2), 283.91 (5), 289.96 (3) (b), 292.99 (2), 293.87 (4) (b), 295.19 (3) (b) 2., and 299.97 (2), and 10 percent of all moneys received as awards under s. 100.263 for the costs of investigation and the expenses of prosecution, including attorney fees, from a person who violates ch. 100, except moneys received for the costs of investigating a violation of s. 100.54, for the purpose of the expenses of investigation and prosecution of violations, including attorney fees.

SB320-SSA2, s. 3 Section 3. 100.263 of the statutes is amended to read:

SB320-SSA2,2,16 100.263 Recovery. In addition to other remedies available under this chapter, the court may award the department the reasonable and necessary costs of investigation and an amount reasonably necessary to remedy the harmful effects of the violation and the court may award the department of justice the reasonable and necessary expenses of prosecution, including attorney fees, from any person who violates this chapter. The department and the department of justice shall deposit in the state treasury for deposit in the general fund all moneys that the court awards to the department, the department of justice, or the state under this section. Ten percent of the money deposited in the general fund that was awarded under this section for the costs of investigation and the expenses of prosecution, including attorney fees, shall be credited to the appropriation account under s. 20.455 (1) (gh).

SB320-SSA2, s. 4 Section 4. 100.264 (2) (intro.) of the statutes is amended to read:

SB320-SSA2,2,25 100.264 (2) Supplemental forfeiture. (intro.) If a fine or a forfeiture is imposed on a person for a violation under s. 100.16, 100.17, 100.18, 100.182, 100.183, 100.20, 100.205, 100.207, 100.21, 100.30 (3), 100.35, 100.44 or, 100.46, or 100.54 or a rule promulgated under one of those sections, the person shall be subject to a supplemental forfeiture not to exceed $10,000 for that violation if the conduct by the defendant, for which the violation was imposed, was perpetrated against an elderly person or disabled person and if the court finds that any of the following factors is present:

SB320-SSA2, s. 5 Section 5. 100.54 of the statutes is created to read:

SB320-SSA2,3,2 100.54 Electronic mail solicitations. (1) Definitions. In this section:

SB320-SSA2,3,4 (a) "Consent" means express consent given upon a person's own initiative or in response to a clear and conspicuous request for consent.

SB320-SSA2,3,7 (am) "Electronic mail service provider" means any person that is an intermediary in providing Internet users with an electronic mail address and the ability to send or receive electronic mail.

SB320-SSA2,3,14 (b) "Electronic mail solicitation" means an electronic mail message, including any program or document attached to the messages, that is sent by one or more persons without the consent of the recipient for the purpose of selling, leasing, or offering to sell or lease, property, goods, or services to the recipient, or for the purpose of inducing the recipient to provide identifying information. "Electronic mail solicitation" does not include an electronic mail solicitation sent by any of the following:

SB320-SSA2,3,16 1. An organization, if the electronic mail solicitation is sent to a member of the organization.

SB320-SSA2,3,19 2. An agency of the federal government, of the state, or of a city, village, town, or county, including the University of Wisconsin System and public schools in this state.

SB320-SSA2,3,20 (bg) "Identifying information" means any of the following:

SB320-SSA2,3,22 1. The unique identifying driver number assigned to an individual by the department of transportation under s. 343.17 (3) (a) 4.

SB320-SSA2,3,23 2. An individual's social security number.

SB320-SSA2,3,25 3. The identifying number of an individual's depository account, as defined in s. 815.18 (2) (e).

SB320-SSA2,4,2 4. An individual's unique biometric data, including fingerprint, voice, retina or iris image, or other unique physical representation.

SB320-SSA2,4,3 5. An individual's electronic signature, as defined in s. 178.46 (1g) (c).

SB320-SSA2,4,7 6. Any other unique code, number, information, or data pertaining to an individual that can be used, alone or in conjunction with another object or device, to obtain, access, or transfer the individual's money, goods, services, benefits, or any other thing of value.

SB320-SSA2,4,10 (br) "Internet" means the international computer network of both federal and nonfederal interoperable packet switched data networks, including the graphical subnetwork known as the World Wide Web.

SB320-SSA2,4,12 (c) "Internet user" means a person that maintains an electronic mail address with an electronic mail service provider.

SB320-SSA2,4,17 (e) "Send" means to originate or transmit an electronic mail message or to procure the origination or transmission of an electronic mail message, but does not include actions that constitute routine conveyance of an electronic mail message, such as the transmission of an electronic mail message by an electronic mail service provider.

SB320-SSA2,4,18 (em) "Sender" means a person who sends an electronic mail solicitation.

SB320-SSA2,4,20 (fm) "Web site" means a location on the Internet with a single uniform resource locator or any other single location on the Internet.

SB320-SSA2,4,22 (2) Prohibitions. (a) Except as provided in par. (b), no person may do any of the following:

SB320-SSA2,4,25 1. Send an electronic mail solicitation that misrepresents or obscures the identity, telephone number, return electronic mail address, or street mailing address of the person sending the electronic mail solicitation.

SB320-SSA2,5,3 2. Send, or assist another in sending, an electronic mail solicitation that misrepresents or obscures information identifying the origin or transmission path of the electronic mail solicitation.

SB320-SSA2,5,7 2m. Send to a person a request for the person's consent to receive an electronic mail solicitation from a 3rd party, unless the request for consent contains clear and conspicuous notice that the person's electronic mail address could be transferred to the 3rd party for the purpose of sending electronic mail solicitations to the person.

SB320-SSA2,5,8 3. Send more than one electronic mail solicitation if any of the following apply:

SB320-SSA2,5,11 a. The person obtains 15 or more electronic mail accounts or Internet user accounts by misrepresenting the person's identity and uses one of the accounts to knowingly send the electronic mail solicitations.

SB320-SSA2,5,14 b. The person obtains 2 or more Internet domain names by misrepresenting the person's identity and uses one of the domain names to send the electronic mail solicitations.

SB320-SSA2,5,17 c. The person misrepresents the right to use 5 or more Internet protocol addresses and uses one of the Internet protocol addresses to send the electronic mail solicitations.

SB320-SSA2,5,20 d. The person accesses the computer or Internet user account of another without the consent of the owner of the computer or Internet user account and sends the electronic mail solicitations using the computer or Internet user account.

SB320-SSA2,5,22 4. Sell, give, or otherwise distribute, or possess with the intent to sell, give, or otherwise distribute, software that is any of the following:

SB320-SSA2,5,25 a. Primarily designed or produced for the purpose of facilitating or enabling the falsification of electronic mail transmission information or other routing information.

SB320-SSA2,6,3 b. Of limited commercially significant purpose other than to facilitate or enable the falsification of electronic mail transmission information or other routing information.

SB320-SSA2,6,6 c. Marketed by that person or someone in concert with that person for use in facilitating or enabling the falsification of electronic mail transmission information or other routing information.

SB320-SSA2,6,10 5. Sell an electronic mail address to another person for the purpose of facilitating or enabling the falsification of commercial electronic mail transmission information unless the seller first obtains the electronic mail address holder's consent to sell that electronic mail address.

SB320-SSA2,6,14 6. Collect electronic mail addresses appearing on the Internet for the purpose of sending, or advertising in, an electronic mail solicitation that contains untrue, deceptive, or misleading information or that solicits the sale or lease of fraudulent products or services.

SB320-SSA2,6,18 7. Take any action by means of a Web site, electronic mail message, or other use of the Internet to induce another person to provide identifying information by misrepresenting the identity or affiliation of the person making the request or misrepresenting the purpose of a solicitation or request.

SB320-SSA2,6,22 (b) Paragraph (a) 1. to 3. does not apply to a person who, through an automatic technical process, transmits, routes, relays, handles, or stores an electronic mail solicitation, if the identity or address of the recipient of the electronic mail solicitation is determined by another.

SB320-SSA2,6,24 (3) Enforcement. (a) The department may investigate violations of this section.

SB320-SSA2,7,3 (b) The department shall make available to the public, in an electronic format, information that explains how a person who receives an electronic mail solicitation that violates this section may file a complaint with the department.

SB320-SSA2,7,5 (4) Criminal penalties. (a) Except as provided in pars. (b) to (d), whoever violates this section is guilty of a Class A misdemeanor.

SB320-SSA2,7,7 (b) Whoever violates this section is guilty of a Class I felony if any of the following apply:

SB320-SSA2,7,9 1. The person sends more than 250 electronic mail solicitations in any 24-hour period.

SB320-SSA2,7,10 2. The violation causes a loss of more than $500 in any 12-month period.

SB320-SSA2,7,12 3. The person acts in concert with 3 or more others as a leader or organizer of the conduct that violates this section.

SB320-SSA2,7,15 (c) Whoever violates sub. (2) (a) 3. is guilty of a Class I felony, if the person obtains 20 or more electronic mail accounts or Internet user accounts by misrepresenting the person's identity.

SB320-SSA2,7,16 (cm) Whoever violates sub. (2) (a) 7. is guilty of a class H felony.

SB320-SSA2,7,18 (d) Whoever violates this section is guilty of a Class H felony, if any of the following apply:

SB320-SSA2,7,19 1. The person acted in furtherance of a felony.

SB320-SSA2,7,22 2. The person has previously been convicted of violating any law of this state or another state, or a federal law, that regulates the transmission of electronic mail solicitations.

SB320-SSA2,7,25 (e) In addition to the penalties authorized under this section, a court may order that a person who is guilty of violating this section forfeit to the state any of the following:

SB320-SSA2,8,2 1. Money or other things of value the person obtained as a result of violating this section.

SB320-SSA2,8,5 2. Personal property used in connection with a violation of this section, if the owner of the personal property knew it was used in connection with a violation of this section.

SB320-SSA2,8,8 (5) Civil forfeitures. (a) The department may initiate a civil action against a person who violates this section and recover a civil penalty in the following amounts:

SB320-SSA2,8,10 1. Not more than the greater of $25,000 per day of violation, or $8 per electronic mail solicitation sent in violation of this section.

SB320-SSA2,8,14 2. If the court finds the person sent an electronic mail solicitation in violation of this section to a computer that the person knew or should have known was accessible to a minor, the amount under subd. 1. plus an additional forfeiture not to exceed $10,000 per violation.

SB320-SSA2,8,16 (b) An action under this subsection shall be initiated not later than 2 years after the last violation.

SB320-SSA2,8,23 (5m) Private action. (a) If a person, other than an electronic mail service provider, is injured by an electronic mail solicitation that violates this section, the person may bring an action against the sender of the electronic mail solicitation to recover damages not to exceed $500 or twice the amount of the person's pecuniary loss, whichever is greater, if the electronic mail solicitation is one of 250 or more electronic mail solicitations that violate this section sent by a person in a 24-hour period.

SB320-SSA2,9,2 (b) If a person is injured by an electronic mail solicitation that violates sub. (2) (a) 7., the person may bring an action against the sender of the electronic mail solicitation to recover damages not to exceed $500 or twice the amount of the person's pecuniary loss.

SB320-SSA2,9,8 (c) 1. If an electronic mail service provider is injured by an electronic mail solicitation that violates this section and that is one of 250 or more electronic mail solicitations that violate this section sent by a person in a 24-hour period, the electronic mail service provider may bring an action against the sender of the electronic mail solicitation to recover damages as specified in subd. 2., if all of the following are true:

SB320-SSA2,9,10 a. The electronic mail solicitation violates a policy of the electronic mail service provider.

SB320-SSA2,9,12 b. The sender has knowledge of the policy or the policy is available at the electronic mail service provider's Web site.

SB320-SSA2,9,15 2. An electronic mail service provider that prevails in an action under subd. 1. shall recover damages in one of the following amounts, as selected by the electronic mail service provider:

SB320-SSA2,9,16 a. The amount of the electronic mail service provider's pecuniary loss.

SB320-SSA2,9,18 b. $1 for each electronic mail solicitation sent during the 24-hour period to an Internet user of the electronic mail service provider.